Court of Appeals of Wisconsin.
Case No. 96-1368.
Opinion Released: October 24, 1996. Opinion filed: October 24, 1996. This opinion will not be published. See RULE 809.23(1)(b)4, STATS.
APPEAL from an order of the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed.
EICH, C.J.[1]
Donald Maier, appealing from an order revoking his motor vehicle operating privileges under the implied-consent law for his refusal to submit to a chemical test of his blood-alcohol content, argues that our decision in State v. Babbitt, 188 Wis.2d 349, 525 N.W.2d 102 (Ct.App. 1994), requires police officers to have probable cause to arrest before requesting such a test.
We held in Babbitt that a driver’s refusal to perform a requested field sobriety test is not protected by the Fifth Amendment privilege against self-incrimination and, therefore, may be used to establish probable cause to arrest for driving while intoxicated. Id. at 362, 525 N.W.2d at 106. Maier suggests that some of the language in Babbitt
suggests that a motorist is compelled to cooperate — either by performing the test or “providing the incriminating refusal to submit” — which has the effect of turning a stop (which does not require probable cause) into an arrest (which does).
The question is answered by our recent decision in DaneCounty v. Campshure, ___ Wis.2d ___, 552 N.W.2d 876 (Ct.App. 1996), where we specifically rejected the argument Maier makes here: that a lawful request by an officer constitutes “compulsion” for Fifth Amendment purposes, thus transforming a lawful investigatory stop into an arrest. Id. at ___, 552 N.W.2d at 878.
By the Court. — Order affirmed.